In L E Vantinnen-Newton -v- Geo Group UK Limited the Employment Appeal Tribunal, in overturning the decision of the tribunal, has yet again reminded employers that it is not enough simply to apply the rules when it comes to dismissal. Any decision to dismiss must be informed and, in misconduct cases, the employer must demonstrate the steps taken to establish the misconduct.
This may seem obvious but this case demonstrates why relying on procedures too heavily can cause an employer to take their eye off the ball. From the employee’s perspective it is a useful reminder that even the most innocent and apparently innocuous contact with the media can come at a high price in terms of sanctions in employment.
Revd. Vantinnen-Newton was head chaplain at the Campsfield House Immigration Detention Centre which was run by the Geo Group. He was dismissed for gross misconduct in November 2007 after giving a short interview to BBC Radio Oxford as part of a broadcast called “Faith in the workplace”. He did so without authority from the employer. The staff hanbook included the following instruction:
“Dealing with the media: No employee of Geo is authorised to make any comments or give any interviews to the media without prior and express permission of the managing director. Any employee who is approached by any media must refer the person to a senior manager at the earliest opportunity.”
Revd. Vantinnen-Newton gave the interview on 17 July. He informed his line manager on 19 July that he had given the interview, that it was due for broadcast on 22 July and that he should “look out for it”. As it happens the interview was not broadcast until 29 July. In the meantime no attempt was made by the employer to discover the content of the interview or even to contact the radio station. No-one in authority either heard the recording or read a transcript of it before Revd. Vantinnen-Newton was dismissed. However the employer did notify the UK Border Authority about the matter. In the words of His Honour Judge Reid QC in the EAT: “There is no evidence that anyone at the Home Office or the UK Border Authority displayed the slightest interest in the broadcast either before or after the event, still less that it had any repercussions for [Geo]“.
Revd. Vantinnen-Newton raised a grievance about his suspension, describing it was “unwarranted, hasty, demeaning, intimidating and vindictive”. Thereafter and as is so often the case with concurrent disciplinary and grievance procedures, the matter became bogged down with technical and procedural issues. The upshot was that Revd. Vantinnen-Newton did not attend the disciplinary hearing following which the decision was taken to dismiss him for gross misconduct. An appeal was unsuccessful.
In the tribunal it was held that the employer was entitled to take a “strict” view of the matter so that the action taken by the employer, although perhaps harsh, was within the range of reasonable responses available to a reasonable employer. The EAT disagreed. Although taking the view that the chaplain should have known that what he was doing was wrong in the context of the employer’s rules, the employer could not reasonably maintain that the interview was likely to bring the Company into disrepute if no representative of the employer (let alone those involved in taking the decision to dismiss) had even heard the interview. Accordingly Revd. Vantinnen-Newton was unfairly dismissed. However the tribunal had taken the view that if he was unfairly dismissed then he should be regarded as having contributed to his dismissal to the extent of 85% and the EAT agreed with this assessment.
One of the most frequently used authorities in unfair dismissal cases is British Home Stores Limited -v- Burchell and, although dating back to 1978 it was again of direct relevance in this case. It is worth mentioning the key guidance in that decision once again:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared the view in those circumstances.”